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Taking of Marine Mammals Incidental to Commercial Fishing Operations; Harbor Porpoise Take Reduction Plan Regulations; Change to the List of Exempted Waters and Request for Comments
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: October 27, 2000 (Volume 65, Number 209)]
[Proposed Rules]
[Page 64415-64417]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr27oc00-30]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 229
[Docket No. 001011283-0283-01; I.D. 082200C]
RIN 0648-AO30
Taking of Marine Mammals Incidental to Commercial Fishing
Operations; Harbor Porpoise Take Reduction Plan Regulations; Change to
the List of Exempted Waters and Request for Comments
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Notice of proposed rulemaking.
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SUMMARY: NMFS proposes to amend the Harbor Porpoise Take Reduction Plan
(HPTRP) to include Delaware Bay, landward of the 72 COLREGS line
(International Regulations for Preventing Collisions at Sea, 1972), in
the list of exempted waters. Members of the Mid-Atlantic Harbor
Porpoise Take Reduction Team (MATRT) recommended by consensus that NMFS
redefine the list of exempted waters because harbor porpoise stranding
and observer data did not justify subjecting fishers in Delaware Bay to
the HPTRP gear restrictions. This proposed rule would exempt fishers
operating in Delaware Bay from the HPTRP regulation. NMFS also requests
comments on a recommendation from the MATRT to change the definition of
small mesh gillnet.
DATES: Comments must be received at the appropriate address (see
ADDRESSES) by November 27, 2000.
ADDRESSES: Comments on this proposed rule should be sent to Chief,
Marine Mammal Division, National Marine Fisheries Service, 1315 East-
West Highway, Silver Spring, MD 20910.
FOR FURTHER INFORMATION CONTACT: Gregg LaMontagne, NMFS, Northeast
Region, 978-281-9291; Diane Borggaard, NMFS, Southeast Region, 727-570-
5312; or Emily Hanson, NMFS Office of Protected Resources, 301-713-
2322, ext. 101.
SUPPLEMENTARY INFORMATION: On December 2, 1998, NMFS published a final
rule (63 FR 66464) implementing the HPTRP. Among other measures, the
final rule identified those waters that are exempt from the HPTRP (50
CFR 229.34).
Section 118(f)(9) of the Marine Mammal Protection Act (MMPA) allows
NMFS to issue regulations to implement a take reduction plan or
amendments to a take reduction plan that, among other things, restricts
fishing by time or area. In addition, NMFS' regulations implementing
the HPTRP allow the Assistant Administrator for Fisheries, NOAA to
revise the requirements of the plan through notification published in
the Federal Register if NMFS determines that the boundary of a closed
area is not appropriate.
The MATRT met on January 13 and 14, 2000, in Alexandria, Virginia.
The MATRT recommended by consensus that the line defining the exempted
waters of Delaware Bay be moved seaward from the published position of
39 deg. 16.70'N 75 deg. 14.6'W TO 39 deg. 11.25'N 75 deg. 23.90'W
(southern point of Nantuxent Cove, NJ to the southern end of Kelly
Island, Port Mahon, DE) and be redefined as a line from Cape May Canal
to the Lewes Ferry Terminal. The MATRT concluded that there was no
compelling reason for the existing position of the line in Delaware
Bay, compared to other large bays in the Mid-Atlantic region (e.g.,
Chesapeake Bay and Long Island Sound), which typically establish the
exempted waters as landward of the mouth of an inlet or the 72 COLREGS
line. The MATRT believed that the existing line imposed unnecessary
requirements on the Delaware Bay fishing community because harbor
porpoise stranding data and observer data did not justify imposing
HPTRP gear restrictions on the fishers in Delaware Bay.
This proposed rule would redefine exempted waters for Delaware Bay
to include all marine and tidal waters landward of the 72 COLREGS
demarcation line, as depicted or noted on nautical charts published by
NOAA (Coast Charts 1:80,000 scale), and as described in 33 CFR part 80.
Using the COLREGS line is a slight deviation from the MATRT's consensus
recommendation. The 72 COLREGS line was selected instead of the line
recommended by the MATRT because the 72 COLREGS line is a well known
and widely published line of demarcation. The actual difference between
the COLREGS line and the MATRT recommended line is a seaward shift of
approximately 1 nautical mile.
NMFS used observer data and harbor porpoise stranding data for
Delaware and New Jersey to analyze the MATRT's consensus
recommendation. Sea sampling observer data from inside the Delaware Bay
for 1995 (23 observed hauls) and 1999 (12 observed hauls) were
analyzed. During these 35 observed hauls no harbor porpoise
interactions occurred. There has been 1 documented take of a harbor
porpoise in a shad gillnet as explained in the Environmental Assessment
prepared on November 24, 1998. Additional information was provided by a
letter dated March 3, 2000, from the New Jersey Division of Fish and
Wildlife, which stated that during 11 years of netting and tagging shad
and striped bass in Delaware Bay there were no harbor porpoise
interactions or sightings.
Stranding data from 1992-1999 revealed a total of 21 stranded
harbor porpoise, with 17 stranded on the Delaware side of Delaware Bay
and four stranded on the New Jersey side of Delaware Bay. The four New
Jersey strandings exhibited no evidence of fishery interactions,
although the animals were either emaciated or the cause of death could
not be determined. Six of the 17 Delaware strandings displayed evidence
of fishery interactions. The majority of the strandings occurred in the
Lewes and Broadkill Beach areas near the mouth of Delaware Bay,
suggesting that the strandings may have occurred as a result of
interaction with dogfish and monkfish fishing activities outside of
Delaware Bay, with the animals
[[Page 64416]]
stranding inside the Bay after drifting with prevailing ocean currents
or tides.
Based on the analysis of observer and stranding data, no increase
in harbor porpoise mortality is expected to occur as a result of moving
the line delineating exempted waters seaward, and, therefore, NMFS
concurs with the MATRT recommendation to include Delaware Bay in the
exempted waters of the Mid-Atlantic component of the HPTRP.
NMFS also requests comments on the consensus recommendation of the
MATRT to change the definition of small mesh gillnet. As defined in 50
CFR 229.2, small mesh gillnet is defined to mean a gillnet constructed
with a mesh size of greater than 5 inches (12.7 cm) to less than 7
inches (17.78cm). The MATRT recommended changing the definition of
small mesh gillnet to mean a gillnet with a mesh size greater than 5.5
inches (13.97 cm) to less than 7 inches (17.78 cm) to provide
regulatory relief to fishers utilizing the 5.0-5.5 mesh size gillnets
throughout the range of the Massachusetts (MA) portion of the HPTRP.
The MATRT felt the bycatch data demonstrated very low harbor porpoise
take rates for this mesh size range. However, 1999-2000 sea sampling
observer data from the Massachusetts reports 4 takes in 4.9-5.0 inch
mesh size gillnet (reported by vessel captain) with shad as the primary
species sought. Given this information NMFS is particularly interested
in comments regarding the impact of different mesh sizes on harbor
porpoise and other marine mammals, the impact of different mesh size
regulations on other species, including non-target fish, and the
economic impact to the fishery.
Classification
This proposed rule has been determined to be not significant for
the purposes of Executive Order 12866.
NMFS prepared an Environmental Assessment (EA) on the final rule
(63 FR 231, Dec. 2, 1998) to implement the HPTRP. This proposed action
amends the HPTRP and NMFS prepared an Environmental Assessment for this
proposed action and found that amending the HPTRP as described in this
proposed action will not significantly affect the quality of the human
environment.
The Chief Counsel for Regulation for the Department of Commerce
certified to the Chief Counsel for Advocacy for the Small Business
Administration that this proposed rule would not have a significant
economic impact on a substantial number of small entities as follows:
The proposed rule would modify the Harbor Porpoise Take
Reduction Plan (HPTRP) to redefine exempted waters for Delaware Bay
to be all marine and tidal waters landward of the 72 COLREGS
demarcation line.
This proposed action would relieve restrictions on fishers
operating in Delaware Bay. At their most recent meeting, the Mid-
Atlantic Harbor Porpoise Take Reduction Team (MATRT) concluded that
harbor porpoise stranding and observer data did not justify imposing
HPTRP gear restrictions on fishers operating in Delaware Bay. The
MATRT recommended by consensus that the line defining the exempted
waters of Delaware Bay be moved seaward. Based on NMFS' analysis of
stranding and observer data, no increase in harbor porpoise
mortality is expected to occur as a result of moving the line, and
therefore we propose to implement the MATRT's consensus
recommendation.
The economic impacts of the proposed change is expected to be
positive because it is lifting regulations on fishers operating in
Delaware Bay. State fisheries management personnel report that many
of the gillnet fisheries operating in Delaware Bay that would
benefit from the proposed change are conducted on vessels less than
50 feet in length. These fisheries are typically seasonal, operate
from local wharfs, and are not participants in federally managed
fisheries. All of the gillnet vessels analyzed in the Final
Regulatory Flexibility Analysis (RFA) prepared on November 24, 1998,
for the HPTRP qualified as small entities based on a threshold of $3
million in gross annual sales. The RFA estimated that 176 vessels
would be impacted by the regulations, either through area closures
or gear modifications.
New Jersey estimates that 28 fishermen qualified for the 2000
fishing year limited entry directed shad fishery inside Delaware
Bay, and some of these fishers may be using small gillnet that is
currently regulated by the HPTRP. In 1998, Delaware issued 115
commercial gillnet permits in 1998 and it is reasonable to expect
that some of these permit holders operate inside Delaware Bay for
some portion of the year and use gear subject to the HPTRP. This
proposed action would reduce the regulatory burden on those fishers
operating in Delaware Bay and using gillnet regulated by the HPTRP.
This proposed rule is not likely to adversely affect endangered or
threatened species.
This proposed rule does not change the determination that the HPTRP
will be implemented in a manner that is consistent to the maximum
extent practicable with the approved coastal management programs of the
Atlantic states.
This proposed rule does not contain policies with federalism
implications sufficient to warrant preparation of a federalism
assessment under Executive Order 12612.
This proposed rule is promulgated in compliance with all procedural
requirements established by the Administrative Procedure Act.
List of Subjects in 50 CFR Part 229
Administrative practice and procedure, Confidential business
information, Fisheries, Marine mammals, Reporting and recordkeeping
requirements.
Dated: October 22, 2000.
Penelope D. Dalton,
Assistant Administrator for Fisheries, National Marine Fisheries
Service.
For the reasons set out in the preamble, 50 CFR part 229 is
proposed to be amended as follows:
[[Page 64417]]
PART 229-AUTHORIZATION FOR COMMERCIAL FISHERIES UNDER THE MARINE
MAMMAL PROTECTION ACT OF 1972
1. The authority citation for part 229 continues to read as
follows:
Authority: 16 U.S.C.1361 et seq.
2. In Sec. 229.34, paragraph (a)(2) is revised to read as follows:
Sec. 229.34 Harbor Porpoise Take Reduction Plan-Mid-Atlantic.
(a)***
(2) Exempted waters. All waters landward of the first bridge over
any embayment, harbor, or inlet will be exempted. The regulations in
this section do not apply to waters landward of the following lines:
New York
40 deg. 45.70' N 72 deg. 45.15' W TO 40 deg. 45.72' N 72 deg.
45.30' W (Moriches Bay Inlet)
40 deg. 37.32' N 73 deg. 18.40' W TO 40 deg. 38.00' N 73 deg.
18.56' W (Fire Island Inlet)
40 deg. 34.40' N 73 deg. 34.55' W TO 40 deg. 35.08' N 73 deg.
35.22' W (Jones Inlet)
New Jersey/Delaware
39 deg. 45.90' N 74 deg. 05.90' W TO 39 deg. 45.15' N 74 deg.
06.20' W (Barnegat Inlet)
39 deg. 30.70' N 74 deg. 16.70' W TO 39 deg. 26.30' N 74 deg.
19.75' W (Beach Haven to Brigantine Inlet)
38 deg. 56.20' N 74 deg. 51.70' W TO 38 deg. 56.20' N 74 deg.
51.90' W (Cape May Inlet)
All marine and tidal waters landward of the 72 COLREGS demarcation
line (International Regulations for Preventing Collisions at Sea,
1972), as depicted or noted on nautical charts published by NOAA (Coast
Charts 1:80,000 scale), and as described in 33 CFR part 80. (Delaware
Bay)
Maryland/Virginia
38 deg. 19.48' N 75 deg. 05.10' W TO 38 deg. 19.35' N 75 deg.
05.25' W (Ocean City Inlet)
37 deg. 52.' N 75 deg. 24.30' W TO 37 deg. 11.90' N 75 deg. 48.30'
W (Chincoteague to Ship Shoal Inlet)
37 deg. 11.10' N 75 deg. 49.30' W TO 37 deg. 10.65' N 75 deg.
49.60' W (Little Inlet)
37 deg. 07.00' N 75 deg. 53.75' W TO 37 deg. 05.30' N 75 deg. 56.'
W (Smith Island Inlet)
North Carolina
All marine and tidal waters landward of the 72 COLREGS demarcation
line (International Regulations for Preventing Collisions at Sea,
1972), as depicted or noted on nautical charts published by NOAA (Coast
Charts 1:80,000 scale), and as described in 33 CFR part 80.
* * * * *
[FR Doc. 00-27696 Filed 10-26-00; 8:45 am]
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